When an overseas employee is arrested on business in the U.S.: Consequences for business travel

When an overseas company’s employee is arrested on a minor criminal charge while on business in the United States, the company needs to consider how it and the employee may minimize the chances that the employee’s future business travel to the United States will be affected negatively. This article is the third in a three-part series. Part 1 and Part 2 can also be found on InsideCounsel.com.

Consequences for business travel

An arrest will most certainly complicate the employee’s ability to travel to the United States in the future. Having secured a qualified U.S. lawyer to handle the criminal case, the company should also help the employee obtain advice from a qualified immigration practitioner to reduce the chances that the criminal case will lead to negative immigration consequences.

Part 1 of this series mentioned that one of the first judgments the U.S. criminal practitioner should make, with the aid of immigration counsel, is whether the employee should stay in the United States or return home, if the employee has not yet returned. Ideally, if criminal counsel has negotiated a suitable agreed resolution, such as court supervision with no criminal conviction, the matter could be resolved promptly with a single court appearance, allowing the employee to return to the United States and to address the matter in the future with U.S. immigration authorities as a past event.

Whether the employee seeks to return to the United States to resolve the criminal matter or whether the matter has been resolved and the employee wishes to return for business, U.S. criminal and immigration counsel need to lay the groundwork for overcoming the fact of the employee’s arrest during his or her efforts to obtain authorization to travel to the United States.

The U.S. Department of State allows foreign visitors to enter the country on a visa, for which the employee must apply at the nearest U.S. embassy or consular facility in the home country. Alternatively, though, a foreign visitor from a country that has been admitted into the State Department’s “visa waiver program” may enter without a visa. Japan, for example, is a visa waiver country. This process is much faster and easier than applying for a visa, as the employee completes an online application through the U.S. Bureau of Customs and Border Protection’s Electronic System for Travel Authorization (ESTA). The employee can then check on the ESTA website to confirm that travel to the United States has been authorized.

In a typical case in which an employee was arrested in the United States, the employee may have entered through the visa waiver program and then needs to re-enter to resolve the criminal matter. Of course, one important fact has changed in most arrest cases, as the employee was arrested since last obtaining ESTA authorization. The ESTA application itself asks not whether the applicant was arrested or convicted for “any” crime, but rather whether the applicant was arrested or convicted of: any “crime or moral turpitude”; any violation “related to a controlled substance”; or “two or more offenses for which the aggregate sentence of conferment was five years or more.” Advice from a qualified immigration attorney is necessary, because under the applicable regulations in the U.S. State Department’s Foreign Affairs Manual (9 FAM § 40.21(a)N2), “moral turpitude” is defined very broadly to include, for example, “theft.”

While a previously issued ESTA authorization might still allow the employee to enter without a re-application, the employee risks being denied entry if he or she is questioned at the U.S. port of entry and must disclose that he or she has been arrested. Our experience includes cases in which Customs and Border Protection agents at the port of entry have asked this question. The employee’s only choice in such a case is to answer truthfully, because an untruthful answer can be extremely damaging and can result in future exclusion from the United States. Knowingly making a false statement to a U.S. federal official in a matter within the official’s jurisdiction is also a separate and serious federal crime. Our experience also includes cases in which employees arrested since their last U.S. visit were denied ESTA authorization (upon their disclosure of the fact that they were arrested) and had to apply for a visa.

Accordingly, one option is simply to apply for a visa. The standard U.S. visa application (form DS-160) asks the applicant to answer “yes” or “no” as to whether he or she was ever arrested for or convicted of “any offense or crime,” no matter whether the offense was the subject of any pardon. The visa application commonly will include a subsequent interview with a U.S. consular officer and a waiting period of 10 to 14 days after the interview, or longer if the application is referred to “administrative processing.”

Ordinarily, in an arrest case, the consular officer will be concerned not only with whether the applicant intends to return to the home country after the U.S. trip, but also whether the arrest supplies grounds to deny the visa application. Consideration of these applications is within the State Department’s discretion, and therefore nothing can be guaranteed. To help achieve the employee’s goals, U.S. counsel should consider at least the following measures:

While the U.S. court may well order that the employee appear on a date certain, the U.S. practitioner should consider avoiding the entry of such an order, if possible. A “status date” is preferable, so counsel does not commit the employee to appearing until the visa has actually issued and until entry into the United States is assured.

U.S. counsel can help prepare the employee for the consular interview by providing the employee with a letter, in English, to present to the consular officer. The letter should include a brief factual summary and the positive steps the employee has taken or is taking to resolve it favorably.

Counsel should include certified copies of all appropriate documentation, including the criminal complaint or indictment, any orders compelling the employee’s appearance or scheduling status dates, and of course the final sentencing or judgment order setting forth the actual resolution.

Counsel may wish to state in the letter that he or she is available for a telephone call during the consular interview, if the consular officer has any questions of counsel. Counsel may be in a better position to answer certain questions about the U.S. legal process than would the overseas-based client.

Even the most minor criminal offense can harm an employee’s prospects for future U.S. business travel, particularly if not handled properly. The company can improve those prospects by involving qualified U.S. criminal and immigration practitioners to obtain the most favorable resolution while navigating the immigration aspects of the problem.